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Akron Univ. School of Law

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Tuesday, December 10, 2013

Disability Accommodation and Board Certification

Accommodations for people with disabilities in professions remains controversial.  In medicine as in law, courts defer to the judgments of professional organizations regarding appropriate qualifications.  An illustration is a recent district court ruling in Pennsylvania that it is not a reasonable accommodation to alter the multiple choice format for the examination for Board certification in pediatrics. Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D.Pa).  This decision is troubling both for its understanding of disability and for its deference to the board certification process.

According to the district court, Rawdin was "by all accounts, an excellent pediatrician."  Yet Rawdin had a cognitive disability resulting from earlier surgeries for a brain tumor--a disability that affected his ability to process remembered information out of context in a manner that would enable him to succeed on tests in the multiple choice format.  Despite several tries, Rawdin could not pass the board certification exam given by the American Board of Pediatrics (ABP).  Because of his failure to obtain Board certification, Rawdin was dismissed from his positions in the Neonatology Department of the Children's Hospital of Philadelphia (CHOP), where he had served for 5 years and become the Assistant Director of CHOP's nursery, held a faculty post, and was part of the Academic Clinician Track at the University of Pennsylvania School of Medicine.  Rawdin brought suit against the ABP under Title III of the ADA seeking alternative testing as an accommodation.  The district court held that Rawdin was not a person with a disability under the ADA (as amended by the ADAAA) and that, even if he qualified for statutory protection, the accommodation he sought was not reasonable because it would be a fundamental alteration of the ABP testing procedure.

The court's ruling against Rawdin rested primarily on the determination that his disability did not bring him within the statutory protection of the ADA.  As the case arose after the effective date of the ADAAA, the court applied the amendments' more expansive standard for determining disability.   The court agreed that Rawdin's memory processing difficulties are a mental impairment and that test taking is a major life activity. However, the court still concluded that Rawdin was insufficiently affected to meet the statutory standard, reasoning that his cognitive processing abilities were at least average for the general population and so his limitation was not substantial.  This comparison--between Rawdin's abilities and the general population, not between Rawdin's abilities had he not had the brain tumor and Rawdin's abilities as affected by the tumor and its treatment--was not changed by the EEOC in light of the ADAAA.   Interpretations such as this illustrate the irony of the ADA, even as amended by the ADAAA:  there are many who could work successfully or meaningfully access accommodations but who remain unprotected by the ADA even in its amended form.

Although the Rawdin court's determination that Rawdin did not warrant statutory protection was sufficient for its decision, the court also reached out to state that Rawdin's request to that the Board certification exam in essay form was not a reasonable accommodation.  In thus concluding, the court judged that the ABP was an academic institution and thus deferred to the ABP's claim that a multiple choice examination was the best way to assess competence in the field.  The court also concluded that developing a different exam would impose an undue hardship on the ABP.

The Rawdin court also chose to reach the issue of whether altering the format of the exam was a reasonable accommodation, even though it was unnecessary to its resolution of the case.  Deferential to the ABP as to an academic institution, the court concluded that its determination that changes in the exam format would lower standards should be respected.  The court also judged that the requested accommodation would be a fundamental alteration of the Board certification process. 

The decision's deference to professional determinations is not surprising.  However, if the court's description of Rawdin's excellence as a neonatologist is accurate, it illustrates the problematic costs of the ABP's approach.

[LPF

 

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